On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-59-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A.A. Rodríguez and C.S. Fisher.
Plaintiff Robert Andrews, one of three candidates for the Democratic nomination for United States Senator in the June 3, 2008 primary, filed this action seeking relief regarding the design of the ballots to be used for the primary. The dispute at hand arose because the county clerks permitted candidates for other offices to be bracketed with senate candidates and because the county clerks differed in the manner in which they treated senate candidates who requested bracketing and those that did not.
Andrews's action was brought, on April 16, 2008, against the county clerks of all twenty-one counties. The trial judge initially denied an application to stay the process and also permitted the New Jersey Democratic State Committee, the Bergen County Democratic Organization, and Frank R. Lautenberg, the incumbent candidate for the United States Senate, to intervene as defendants. After providing all parties the opportunity to be heard, the trial judge entered a final order based on the reasons set forth in her thorough oral decision of April 22, 2008. The judge denied the application "to enjoin the production and printing of the ballots," but also provided "that the Bergen County clerk shall not add any candidates not affiliated with a candidate for U.S. Senator to the column under that Senate candidate's name."
Plaintiff immediately sought our review of the trial judge's April 22, 2008 order. At that time, we concluded that the matter warranted expedited consideration and accelerated the filing of briefs on the merits. We now affirm in part and reverse in part.
In seeking our intervention into the electoral process, Andrews first argues there has been a violation of N.J.S.A. 19:23-26.1, which states:
In the case of a primary election for the nomination of a candidate for the office of United States Senator . . . the names of all candidates for the office of United States Senator . . . shall be printed on the official primary ballot in the first column or horizontal row designed for the party of those candidates.
This portion of the statute requires, as relevant here, that senate candidates be listed either in the left vertical column or the top horizontal row (depending upon the type of ballot used). Here, most of the clerks listed all three senate candidates -- Lautenberg, Andrews, and Donald Cresitello --either side-by-side in the top row or one on top of the other in the left column. It appears, however, that three counties --Camden, Cape May and Somerset -- have placed the three Democratic senate candidates in what the parties have referred to as an "L" formation. By way of illustration, the three senate candidates appear in the following fashion in the upper left corner of the proposed ballot in Somerset County:
Andrews Lautenberg Cresitello
We agree with Andrews' contentions -- and Lautenberg and the New Jersey State Democratic State Committee acknowledged at the argument before us -- that this approach is inconsistent with the requirements of the first paragraph of N.J.S.A. 19:23-26.1. Stated differently, the intent and spirit of the statute require the senate candidates to be listed in the same ...